Land reform in South Africa in 2018

December 3, 2018

BEN COUSINS

Land reform has recently become an explosive political issue in South Africa. Progress in transforming racially unequal patterns of land ownership in rural and urban areas has been painfully slow since the transition to democracy in 1994.

Despite this, land has remained somewhat marginal to the country’s politics. In 2018, however, it became the single most hotly debated issue in South African society. Why is this, and what does the hullaballoo signify?

The core focus of current debate is whether or not expropriation of (mainly white-owned) land, without compensation, and its subsequent redistribution to black people should be a major vehicle for land reform. The controversy was sparked by a resolution to this effect adopted in December 2017 by the African National Congress (ANC), and the establishment of a parliamentary committee to explore the issue, in February 2018.

Why the focus on expropriation without compensation?

Current controversies derive from more than simply the widespread dissatisfaction with land reform. ‘Land’ is a powerful signifier of a wider set of discontents focused on the post-apartheid settlement, which has failed to address the structural roots of poverty and inequality. Two-third of the population lives in urban areas, where jobs, opportunities within the informal economy, houses and affordable transport are hard to come by. Public education and health services are very poor. Young people face daunting obstacles to employment.

It is clear that the corrupt regime of former president Jacob Zuma between 2009 and 2018 is partially to blame for these problems, with the state apparatus increasingly hollowed out by ‘state capture’. However, the problems predate Zuma. ANC policies adopted after 1994 failed to address the continued domination of the formal economy by powerful corporations and a privileged elite. This has underpinned the reproduction of apartheid-era spatial inequalities.

It is in this context that a new opposition party, the Economic Freedom Fighters (EFF) emerged in 2013, led by former ANC youth leader Julius Malema. Nominally socialist in orientation, the EFF brand of populism appeals to many young people who are angry and critical. It achieved 8.2% of the vote in the 2016 local government elections.

The unresolved land question, and in particular the policy of paying for land targeted for redistribution, has been a key rallying cry for the EFF. It is sure to be a central issue in the upcoming national election. The EFF was an effective critic of the corrupt rule of Zuma, and its foregrounding of the land issue means that it punches well above its weight.

Intense factional struggles within the ANC have further complicated the issue. The current ANC president, Cyril Ramaphosa, has been cornered by the former president Zuma’s supporters into adopting the ‘expropriation without compensation’ slogan. His inability to deliver on this, even in a limited way, could land him in trouble. Ramaphosa’s obvious reluctance to challenge the traditional leader lobby, despite clear evidence of corruption in deals struck between mining companies and chiefs, certainly presents an ominous sign.

Controversies around expropriation without compensation

In February 2018, a parliamentary ad hoc committee was established to investigate whether or not the country’s constitution should be amended to allow for expropriation without compensation. Parliament then organised a large number of public hearings on the issue, receiving around 600,000 written submissions! The committee must report before the end of 2018, but is subject to a highly acrimonious inter-party politics and seems unlikely to reach agreement on the issue before a national election in May 2019.

Opinion in South African society at large has been strongly divided along lines of both race and class. The private sector, privileged whites and members of the black middle class are adamant that the constitution must not be amended. Many blacks, however, support radical action – refusing to pay for ‘stolen land’ is seen by many as essential for ‘restoring dignity’.

Many commentators argue that section 25 of the constitution, the so-called ‘property clause’, already provides for the possibility of expropriation without compensation. It states that property may be expropriated for a public purpose or in the public interest, which includes land reform.

Both the amount of compensation and its timing and manner must be ‘just and equitable’, taking account of the current use of a property, its history of acquisition and use, its market value, the extent of state investment and subsidy in the acquisition and improvement of the property, and the purpose of the expropriation. It is argued that in some instances of expropriation, zero compensation will be appropriate. This might include the case of former labour tenants who have occupied portions of commercial farms for long periods of time, or long-term squatters on urban land, or where land is being held simply for speculative purposes.

Calls for large-scale expropriation, on the one hand, and for the defence of private property, on the other, often ignore key legal considerations. One is the constitutional requirement that a law of general application must govern expropriation, with the implication that instances must be dealt with case-by-case, and be overseen by the courts. Another is that expropriation by itself is unlikely to be the main vehicle for land redistribution since cases are likely to be contested and will take time to work their way through the courts. Expropriation within the law is thus not a silver bullet – a range of other measures are required to address the deep-seated problems facing land reform, which go beyond the acquisition and transfer of land.

Lost in the smoke – the real challenges facing land reform

In 2016, the South African parliament convened a High Level Panel to investigate progress in implementing legislation adopted after 1994, focusing in particular on social cohesion, poverty and inequality, and land.

The Panel’s 2017 report makes clear that acquiring land for land restitution and redistribution, whether through market transactions, negotiated purchases or expropriation, is the least of the problems facing land reform. More important are questions of who should get land (the poor, market-oriented smallholder farmers, or the emerging black middle class?), and for what purposes (settlement and livelihoods support, or production of a marketed surplus?). Also key are how to provide effective support for production and livelihood systems (through planning, extension, financing), and what kinds of property rights will beneficiaries hold (private ownership, or leases from the state, or collective ownership?).

Beyond policies, the capacity of the state to implement these in an effective manner, as well as corruption, are key constraints that have to be addressed.

Land is more than a symbol of the oppressions of the past and the failures of the post-apartheid project. It is also a productive resource, which could form part of a serious attempt to address structural poverty in South Africa. Although clearly insufficient by itself, land reform could form part of a wider set of progressive state policies.

At the heart of these questions is the issue of the class agenda of land reform. There is much evidence of the capture of the land redistribution programme by business elites and corrupt officials, and of communal tenure reform by chiefs. Weak state capacity and ambiguities in policy frameworks are conducive to such capture.

What are the prospects for more progressive policies being adopted? Given the extreme marginalization of the left in South Africa and the reactionary character of most political formations, pessimism is undoubtedly warranted. But popular energies seeking real change can never be completely discounted, and the possibility of grassroots mobilization forcing a change in the character of land reform continues to inform rural activism.

Professor Ben Cousins holds a DST/NRF Research Chair at the University of the Western Cape and is based at PLAAS (the Institute for Poverty, Land and Agrarian Studies)